European Union (Withdrawal) Bill

The Bill cuts off the source of European Union law in the UK by repealing the European Communities Act 1972 and removing the competence of European Union institutions to legislate for the UK. As such, the EUW Bill has been referred to as “the Great Repeal Bill”. The Bill provides for a complex mixture of constitutional change and legal continuity.

The EUW Bill follows the referendum result in June 2016, and the triggering of Article 50 on 29 March 2017 pursuant to the European Union (notification of Withdrawal) Act 2017. It is the most significant constitutional bill which has been introduced by the Government since the Bill for the European Communities Act itself in 1972.

The second reading debate on the EUW Bill will be held on 7 and 11 September 2017 in the House of Commons. The EUW Bill extends to England and Wales, Scotland and Northern Ireland. Regulations under clause 7 and 17 can also extend to Gibraltar.

The Bill is a response to the decision taken by the electorate of the United Kingdom on 23 June 2016 to leave the EU. One of the stated aims of the successful campaign to leave the EU was to enable domestic political institutions to “take back control” of the laws that applied in the UK.

Clause 1 of this Bill repeals the European Communities Act 1972 on the day that the UK leaves the EU. It returns to Parliament sole competence to legislate over policy areas where such competence is currently ceded to or shared with the EU.

The Bill provides that after exit day EU law no longer has supremacy over legislation passed by the UK Parliament and rulings made by UK courts. Laws made by Parliament post-Brexit will no longer be subject to the principle of the supremacy of EU law. It provides for legal certainty by establishing a mechanism to retain, for the time being, the corpus of EU law which presently applies to the UK, but domestic courts will, when interpreting retained EU law, no longer be bound to follow the judgments of the Court of Justice of the European Union handed down after exit day (clauses 5 and 6).

The Bill is designed to provide legal continuity during Brexit by copying over the entire body of EU law onto the UK’s post-exit statute book. Without the legislation, huge holes would open up within the statute book on exit day. In order to provide such stability, the Bill knits together a new post-Brexit constitutional and legal framework to replace that which has governed the status of EU law in the UK for the last 45 years.

The Bill creates a new category of domestic law for the United Kingdom: retained EU law. Retained EU law will consist of all of the converted EU law and preserved EU-related domestic law which was in force on the day before the UK left the EU. Some elements of EU law are expressly not to be retained, for example, the rights under the Charter of Fundamental Rights (clauses 2, 3, 4 and 5). Retained EU law may subsequently be amended, replaced or repealed by the UK Parliament.

The scheme’s approach to continuity relies on the creation of novel legal concepts that will become major new features of the post-exit day legal landscape. These novel concepts, such as retained EU law, EU-derived domestic legislation, direct EU legislation, the supremacy of EU law are familiar in the sense that they are based on elements of our current arrangements, but will operate in ways that are fundamentally different from the concepts they will replace. The courts will eventually have to interpret these concepts and to decide how they fit within the exiting constitutional framework

Secondary legislation, under powers delegated to Ministers by the Bill, is central to the scheme of the Bill. Both the correction of retained EU law, to the extent that it functions effectively after exit day, and the implementation of any agreement to withdraw from the EU will be achieved through secondary legislation to be enacted under powers in the Bill. Seven further bills, each intended to implement substantive policy changes in UK law following withdrawal from the EU, were announced in the Queen’s Speech in June 2017: it is anticipated that these and other “Brexit Bills” will also amend or replace retained EU law and implement the withdrawal agreement (assuming there is one) in specific policy areas.

Secondary legislation, also known as delegated legislation, can be used by the Government to make changes to the law using powers delegated by an act of Parliament. The use of secondary legislation provides flexibility in content and in timing. It also provides for some confidentiality in the exit negotiations. Under the provisions of the Bill, the Government will have the capacity to use secondary legislation to enact some aspects of the withdrawal agreement quickly, rather than having to use the more lengthy primary legislation procedures.

The Bill provides the legislative mechanisms to create the post-Brexit constitution and statute book rather than the substantive answers to questions as to what these will look like. These questions can only be answered as and when:

• the content of the withdrawal agreement (currently being negotiated) is known,
• any transitional arrangements are agreed,
• the Brexit Bills are published, and
• the statutory instruments that change retained EU law are produced.

The delegated powers within the Bill have attracted some comment for their wide-reaching nature. The Bill gives the Government powers to amend, if certain conditions are met, all retained EU law, including retained EU law which has been implemented in the UK through primary legislation. One of the main powers, in clause 7, is designed to enable the Government to change retained EU law so as to ensure that it operates effectively outside the EU. The power can also be used to change primary and secondary legislation that is not retained EU law, so long as the purpose of the change is to resolve a deficiency of retained EU law. The power to use of secondary legislation to amend primary legislation is known as a “Henry VIII” power.

Although many of these changes are likely to be technical in character, the way in which the powers are drafted does enable substantive policy changes to retained EU law. For example, it would be possible to replace redundant law with new rules and standards or create new public authorities to take on functions previously held by EU institutions (clauses 7 and 8).

Many of the changes to UK law required to implement any withdrawal agreement will be passed under this Bill through secondary legislation. Enacting these provisions would grant the Government the legal authority to legislate for the implementation of the withdrawal deal in domestic law, subject to existing arrangements for parliamentary oversight of delegated legislation. This could, for instance, include any arrangements agreed on the rights of EU nationals.

The discretion the Bill gives to the Government to amend retained EU law by secondary legislation is necessarily very broad, since the provisions preserved and converted by other parts of the Bill may have to be amended significantly to give effect to the withdrawal agreement (clause 9).

There has been comment on the volume of secondary legislation that will be needed to implement Brexit. Scrutiny of all the regulations made under this Bill will be a legislative challenge on an unprecedented scale. There are estimated to be over 12,000 EU regulations to be adapted into UK law, some of which will require corrections to ensure there are no deficiencies in domestic legislation upon our exit from the EU. Further primary legislation (the Brexit Bills) and secondary legislation under powers claimed in those bills will also be required to implement the withdrawal agreement.

At present the devolved legislatures cannot legislate contrary to EU law. The Bill changes this restriction. Post-Brexit the devolved legislatures will not be able to legislate contrary to retained EU law (clause 11).

This may not amount to a major change in practical terms. However, in constitutional terms the basis of the restrictions will have changed. While currently the restriction is based on each devolved legislature being in a Member State of the EU, this Bill provides that, post-Brexit, the restriction would instead only be based on an Act of the UK Parliament.

Without this change, once the UK is no longer a Member State the devolved legislatures would be able to legislate in areas currently covered by EU law that was within devolved competence, such as agriculture. Seen in this way, the Bill effectively re-reserves to the UK Parliament these areas of competence, within competences which have otherwise been devolved.